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Splint’s overuse caused permanent damage, plaintiff claimed






New York


Bronx County


Bronx Supreme

Injury Type(s):

leg-scar and/or disfigurement; leg
other-physical therapy epidermis-bedsore/decubitus ulcer/pressure sore foot/heel-foot foot/heel-heel neurological-nerve damage/neuropathy(nerve damage, foot) surgeries/treatment-debridement

Case Type:

Medical Malpractice – Failure to Monitor, Post-Operative Care

Case Name:

Damon Patterson v. Montefiore Medical Cntr.


May 24, 2013



Damon Patterson (Male, 17 Years)

Plaintiff Attorney(s):

■ Brian M. Brown;
Zaremba Brownell & Brown PLLC;
New York,
Damon Patterson

Plaintiff Expert(s):

Kelly Johnson-Arbor M.D.;
Wound Analysis;
CT called by:
Damon Patterson


Montefiore Medical Center

Defense Attorney(s):

■ Barbara S. Finger;
Wenick & Finger, P.C.;
New York,
Montefiore Medical Center

Defendent Expert(s):

Jeffrey Ascherman; Plastic Surgery/Reconstructive Surgery;
New York,
NY for
Montefiore Medical Center


FOJP Service Corp.


On Sept. 17, 2009, plaintiff Damon Patterson, 17, a student, underwent resection of a cancerous portion of his mandible. The surgery was performed at Montefiore Medical Center, in the Bronx. Patterson’s jaw was reconstructed via the grafting of bony matter that had been harvested from his right leg’s fibula. Muscle, arteries and veins were also removed from the leg, and the leg’s wound was closed via the application of skin that had been harvested from Patterson’s right thigh. A splint and wrapping were applied to the leg. After six days had passed, Patterson underwent removal of his splint. A doctor observed that two ulcers had developed on Patterson’s right foot. Patterson claimed that the sores caused permanent damage of nerves and tendons of the foot. Patterson sued Montefiore Medical Center. He alleged that the hospital’s staff failed to render proper postsurgical treatment. He further alleged that the staff’s failure constituted malpractice. Patterson’s counsel claimed that Patterson’s splint and wrapping caused compression that created a likelihood of the development of ulcers, and Patterson claimed that he reported a painful, swollen condition of his right foot and heel. Patterson’s counsel contended that the hospital’s staff did not recognize or prevent the development of his ulcers. Patterson’s wound-care expert noted that the hospital’s protocols specified that splints must be checked by each shift of nurses. She also noted that the protocols required daily removal of splints, continuous elevation of splinted limbs and the relief of any pressure that may be caused by a splint. She opined that the protocols were appropriate, but that they were not executed. She contended that the hospital’s records indicated that Patterson’s right leg was not continuously elevated, and she claimed that the records also indicated that the hospital’s staff skipped several of the required inspections of Patterson’s splint. The expert contended that the hospital’s staff departed from accepted standards of medical care. Defense counsel contended that Patterson was appropriately monitored and treated. She noted that his condition was evaluated by an intensivist, nurses, an otorhinolaryngologist and surgeons. She claimed that the doctors and nurses did not observe any indication that warranted earlier removal of Patterson’s splint. She also claimed that earlier removal would not have allowed proper healing of Patterson’s right leg, and she contended that incomplete healing could have led to Patterson’s development of a potentially fatal infection. The defense’s expert surgeon opined that the splint’s use was not of excessive duration. Defense counsel also contended that the hospital’s protocols were not obligatory. The defense’s expert surgeon opined that a patient’s treating doctors must determine the appropriate course of care, and he contended that Patterson was properly monitored and treated.


Patterson claimed that the hospital’s staff did not properly monitor the healing of his right leg’s wound. He developed two decubitus ulcers, which are alternately termed “bedsores” or “pressure sores.” One occupied his right heel; the other occupied the upper surface of his right foot. He also developed residual scars of his right leg. Patterson underwent intensive care that included debridement and physical therapy, but his sores progressed. He claimed that the sores caused permanent damage of his right foot’s extensor and flexor tendons. He also claimed that nerves were damaged, and he contended that he experiences resultant limpness and weakness of his right foot. He contended that his residual effects prevent his performance of many strenuous activities. He further claimed that his ulcers’ treatment interrupted the administration of chemotherapy that addressed his cancer. Patterson sought recovery of damages for past and future pain and suffering. Defense counsel contended that Patterson’s scars are an accepted result of the treatment that Patterson underwent. She also contended that his ulcers’ progression was an unpreventable complication of the chemotherapy that he underwent.


The jury found that the hospital’s staff departed from an accepted standard of medical care. It determined that Patterson’s damages totaled $5.7 million.

Damon Patterson$700,000 Personal Injury: Past Pain And Suffering$5,000,000 Personal Injury: Future Pain And Suffering

Trial Information:


Sharon A.M. Aarons





Trial Length:


Trial Deliberations:


Jury Vote:

6-0 (liability, causation); 5-1 (damages)

Jury Composition:

1 male/ 5 female

Editor’s Comment:

This report is based on information that was provided by plaintiff’s and defense counsel.